Bradley Bradley

[2001] NSWSC 1116

CITATION:	Bradley Bradley [2001] NSWSC 1116
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 2155/2000
HEARING DATE(S):	29th and 30th November 2001
JUDGMENT DATE:	3 December 2001
PARTIES :	Yvonne Frances Bradley v Robert Marshall Bradley - Estate of Lindsay James Bradley
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr P. Hallen SC & M. Meek for plaintiff Mr J. Whittle & Mr S. Foda for defendant
SOLICITORS:	Trislley Kilmurray for plaintiff O'Hearn & Bilinsky for defendant
CATCHWORDS:	Family Provision. - Claim by a widow. Incfrease in legacy given under the will by the court. No matter of principle.
DECISION:	Paragraph 42 to 45

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Lindsay James Bradley, who died on 20 October 1998, aged fifty-eight years.

2 He was survived by his widow, the plaintiff, his former wife, and three children by his first marriage. By his will dated 8 May 1998, he left his wife a legacy of $150,000 and a bequest of a motor vehicle, a Ford Fairmont, which he owned. He gave the residue of the estate to his three children, Lee-Anne Rutledge, Janine Lyn Segreto and Michelle Anne Bradley.

3 The estate presently comprises the following: The home at 57 Dilkera Avenue, Valentine, a suburb of Newcastle worth $800,000 (the plaintiff presently resides in that home); superannuation $277,050; cash $65,484.00; one share being half the issued capital in L J Bradley Enterprises Pty Limited $118,864; a total of $1,261,398.

4 There are liabilities as follows: the loan due to L J Bradley Enterprises Pty Limited $192,736; the Commonwealth Bank home loan secured on the home $63,706; total of $256,442, leaving a net estate of $1,004,956. Those figures already take account of the interim provision of $30,000 which has been paid to the plaintiff on account of her claim.

5 Costs have been incurred in this matter, on the plaintiff's part $64,000, and the balance of the defendant's costs which are still unpaid amount to $69,000. This is a total of $133,000, which leaves a distributable estate of $871,956.

6 I will deal with the chronology of the family history. The plaintiff was born on 21 January 1940 and the deceased on 15 August 1940. The plaintiff married for the first time in 1960 and she had a son, Scott, in 1962. The deceased himself married for the first time in April 1963. His daughter, Lee-Anne, was born on 2 October 1963. Michelle was born on 27 June 1967 and Janine on 19 September 1969.

7 In 1974 the deceased and his first wife bought The Antenna Man business in Newcastle. They ran that for some four years and then sold it to buy the Retravision store at Wallsend. They purchased their home at Valentine in 1982. In that year the plaintiff divorced her husband. There was, in the meantime, in 1978, the purchase of a further Retravision store at Warner's Bay. That was sold in 1989 by the deceased and his wife.

8 He and his wife separated in April 1989. They divorced in 1990 and there was a property settlement in which the deceased's first wife received the sum of approximately $390,000.

9 In May 1990 the plaintiff met the deceased. In July that year she moved into the Valentine property and commenced to live with him. They were married on 4 August 1990. Two weeks after that she started working in the Retravision business. She was previously working for Grace Bros.

10 The deceased was diagnosed that he was suffering from diabetes in 1993. In January 1994 there was a separation between the plaintiff and the deceased for a period of ten days. This, and other ones which I will come to, were the result of the deceased suffering from manic depression, subsequently diagnosed in another form. However, it did affect the marriage for some time. For instance, in late 1994 there was a further separation of six weeks. In August to November 1995 the deceased was off work and had to stay at home. In May 1996 there was a separation of some two months as a result of the problems from which the deceased was suffering.

11 However, at this stage, in July 1996, the plaintiff herself joined a support group which apparently enabled her to rejoin the deceased and she and the deceased remained together thereafter. He was diagnosed with cancer in August 1996. He and the plaintiff spent time travelling overseas, and elsewhere, to have him treated for that disorder.

12 His illness progressed during 1998. He made his last will in May 1998, as I have said, and died on 20 October 1998. The plaintiff started to receive the widow's allowance the following year. That was interrupted as a result of the declaration of a dividend of $20,000 by a board meeting of the company which ran the family business. That company was owned as to half by the deceased and half by the plaintiff.

13 The summons was filed on 17 April within time. There was an application for interim provision made in July 2001, which led to the order in August 2001. The plaintiff received an interim sum of $30,000, which was paid a few days later.

14 In applications under the Family Provision Act the High Court has in Singer v Berghouse (1994) 181 CLR 201 set out the two-stage approach that a court must take. At p 209 it said the following:

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life?" The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' et cetera were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance et cetera appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

15 I turn to the plaintiff's situation. She is sixty-one years of age, single and she has a son who is partly dependent, in that he resides in a house which she owns at Adamstown. She has the following assets. She has a property at Adamstown which she inherited from her mother, which is a modest dwelling worth $180,000; she has cash in the bank of $7725; a motor vehicle worth $11,000; furniture worth $500; she has a debt due to her by the company of $16,096; she has her interest in the company which is valued at $118,864; a total of $335,185.

16 She has liabilities, being income tax which she will have to pay on receipt of the payment for her share on the liquidation of the company at $31,898 and a debt to Centrelink of $9942. There is, of course, also the outstanding legacy which she has, and she is entitled also to some interest on that legacy because it has not been paid for many years. That interest would be in the order of $15,000.

17 Those assets, of course, reflect the fact that she has been paid the $30,000 on account. She currently has income of the pension of some $365 per fortnight. She gets $150 from her children, although that will decrease to $100 shortly. Her income is not sufficient to meet her day-to-day expenses.

18 So far as the relationship with the deceased is concerned, there were the three separations to which I have referred in the chronology, but it seems to me fairly clearly they were caused by the depression of the deceased. She was, in fact, warned of this problem before she was married by one of his daughters, but she was prepared to proceed with the marriage notwithstanding that warning. It is also apparent that they got on a lot better and she was able to cope with the depression in a better way after 1996. She was obviously a great help to the deceased in the last couple of years of his illness.

19 So far as contributions to the estate are concerned on the part of the plaintiff, there has, of course, been no cash contribution. She was given a half-share in the business at the time that they married, but there is really no evidence before me that would allow me to form a view one way or the other as to whether that share was worth anything or whether there was some goodwill or assets which were attached to it.

20 At the time of her marriage she was working at Grace Bros as a sales assistant earning $600 per week. She gave that up and started working in the business. The salary she received in the business was $297 per week plus a very small contribution to superannuation. She worked until 1998, when the business apparently stopped as far as she and the deceased were concerned. That is a fairly minimal wage and quite often the plaintiff would work in the business as a fill-in for other staff members when she was not paid. The deceased appeared to be somewhat reluctant to pay any large amounts. He was even reluctant to pass on bonuses to staff and the plaintiff herself sometimes made these up. Clearly, given the level of wages that she received, she made a fairly substantial contribution to the business. She received what I might describe as fairly minimal payment for the work that she did.

21 It is necessary, of course, to consider the position of others having a claim on the bounty of the deceased. These are, of course, his three daughters.

22 Michelle Bradley is one of the daughters. She is currently thirty-four and single. She has no dependants and lives in rented accommodation. Her financial position seems to be as follows: she has a Range Rover Freelander, which is a leased vehicle, possibly worth about $45,000; she has house contents of some $18,000; no cash reserves; superannuation of about $16,475. She has liabilities, of course, under the car lease and her Visa card.

23 Her taxable income for the year ended 30 June 2001 was $51,068. She appears to be on a salary package of $70,000 per annum gross, plus a $15,000 car allowance. She has not acquired any property, in contrast to her sisters. Clearly, she earns a reasonable salary and can manage on that salary in rented accommodation. She shares her accommodation with others who contribute.

24 It is clear that there was a good relationship between the deceased and Michelle. She was very close to her father and, when her father was sick, she in fact gave up a good job which she had in Adelaide - and had had for quite some time - to come back to be in Sydney with him. She also, like her other sisters, contributed to the estate of the deceased by working in the business. All the children worked part-time in the business and, particularly as their parents were engaged full-time working, it fell to most of the children to do a lot of the housework at home, preparation of meals and other matters like that.

25 Michelle, for instance, worked part-time between 1980 and 1983 when she was at school and from 1983 to 1987 she worked as a sales assistant. No doubt she received wages, but they would not have been very substantial and she, I would have thought, contributed to the business, as did all the children, and, indeed, the deceased's wives.

26 Lee-Ann Rutledge is married. She is thirty-eight. She has three children aged thirteen, twelve and two. Her assets situation reflects her marriage. She and her husband, Brett, have property at 15A Cherry Road, Eleebana worth $520,000. They have household contents and effects worth $10,000; funds on deposit and in managed funds of some $20,000; and interest in their family company of $99,280; Lee-Anne's superannuation is $88,970, her husband's superannuation is $101,725 and they have a small quantity of shares in the NRMA and another company.

27 So far as liabilities are concerned, there is a bank loan of some $300,000; credit card debts of $10,000 and moneys owing to the family company of $11,553. Lee-Anne's taxable income for the year ended 30 June 2000 was $39,591. Her husband's taxable income was $58,494.

28 She, like all the other sisters, had a good relationship with the deceased and contributed in the way in which I have set out above.

29 Janine Segreto is thirty-two. She is married. She has one daughter 17 months old and is expecting another child in June next year. Her assets, which are owned with her husband David, are a property at East Ryde worth $450,000; an investment property at Zetland worth $340,000; household contents worth $40,000; some shares worth about $1000; a car worth $30,000; her superannuation worth $24,855 and the evidence does not disclose her husband's superannuation.

30 There is a mortgage on East Ryde of about $279,000 and on Zetland of $239,000.

31 Janine's taxable income for the year 30 June 29000 was $60,154 and her husband's $115,764. Her husband also apparently receives annual bonuses. He received $24,158 in October 2000 and $16,561 in October 2001. Janine will cease her current employment at the end of the year when she will, of course, receive no salary, car, company phone or computer. However, she will not have to pay child care that she now pays. She is in a reasonable financial situation, like her sister Lee-Anne. She is very young and coping well raising a family in circumstances where both of them have reasonable incomes. Likewise, her relationship with her father was satisfactory and she contributed in the way in which I have set out.

32 It is necessary to see how the plaintiff says she is left without adequate and proper provision for her maintenance, education and advancement in life.

33 The plaintiff accepts the fact that the house in which she lives is too large She is happy to move, but she needs another house. The case that she has put before the Court seeks provision for the sum of $500,000 towards the purchase of a home, on which there will be stamp duty of $24,000. She also says she will need to get new furniture to furnish the new home at $31,720.

34 There is evidence before the Court of places which the plaintiff has considered that she would like to purchase. She has looked at a number of residences in the Valentine area. The house where she is is in fact on the waterfront and has panoramic water views. She has found two residences available in Dilkera Avenue, Valentine, for sale at $527,000 and $517,000. She has also found another property at 33 Dilkera Avenue which has a price of $575,000. She says that that property, which is a three-bedroom unit, meets all her needs. Particularly, she wants somewhere where there is easy access,

35 The defendants put on some evidence of possible alternative accommodation. They also included the properties which in fact the plaintiff had inspected. However, the valuer also gave evidence that two-bedroom villas with lake views in the area sold for $250,000 and three-bedrooms for $270,000 to $300,000; modest town houses and villas usually start at $350,000 increasing to $450,000, in proximity to the lake. Once again, that valuer also indicated three-bedroom waterfront units currently sell in the $510,000 to $570,000 price range.

36 It is clear that the deceased and the plaintiff liked the area where they lived. Alterations were made to the house from time to time. I would have thought it is appropriate that housing on the waterfront, of a somewhat lesser size but just as pleasant, ought to be available to the widow.

37 The defendants, in submissions, suggested that some lesser provision ought to be given and pointed to the lower range of figures for accommodation given in evidence by Mr Dupont.

38 They also suggested that the Court could consider a life estate for the widow. In a number of cases recently I have adverted to the inappropriateness of life estates for widows. This was discussed at paras 34 to 46 of Parkinson v Crawford (2001) NSWSC 879. In the present case, the plaintiff wishes the security of her own home. She is sixty-two years of age and has a life expectancy of some 23.17 years. This is a considerable period and there may well be changes for her in the future. I think it is important that she have the security of her own home and that she is free to move without any consideration of what should happen to the capital.

39 Widows' claims are frequently the subject of applications in this Court. The Court of Appeal in Goloski v Goloski (unreported, 5 October 1993) has referred to formulations of this standard to be expected in respect of a widow in terms which refer to the decision of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 and Elliott v Elliott, which was approved by the Court of Appeal on 24 April 1986. There his Honour said:

"Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband and assisted him to build up and maintain his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result; first to ensure that his widow be secure in her home for the rest of her life and that if either the need arises or the whim strikes her she have the capacity to change her home; secondly, that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; and third, that she have available to her a fund to which she might have resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring."

40 This case is not a case that is referred to in that quote, in that the length of the marriage was relatively short. They were together for some seven to eight years. Accordingly, the widow cannot expect to be provided with all the requirements to which I have referred.

41 In this case the children of the deceased do not advance any particular reason, as a result of their own circumstances, why the claim should not be met. However, the situation is not that the plaintiff has no assets. She already has nearly $500,000 in assets, if one includes the legacy, or $350,000 without the legacy. She has the home in which the son resides at Adamstown, which is an ideal home which would provide her with some fund of money which would guard her against unforeseen contingencies. However, she does not have the assets which will in any way provide her with the income that she would normally expect to receive as a widow. It seems to me that, if I make for provision for her to have a house, then she will receive an appropriate level from the estate which will reflect both the contributions she has put into the estate and also take account of the fact that it was only a short marriage. She, of course, will not have assets to produce sufficient income for herself.

42 What I propose to do is to make provision of an appropriate legacy in lieu of the $150,000 but which allows for payment of $30,000.

43 Accordingly, the orders I make are as follows: In lieu of the legacy of $150,000 in the will of the deceased in favour of the plaintiff, she receive a legacy of $550,000, which has been paid as to $30,000.

44 The plaintiff's costs on a party and party basis, as agreed or assessed, can be paid out of the estate of the deceased. The defendant's costs on an indemnity basis will be paid out of the estate of the deceased.

45 I order the exhibits to be returned. The documents produced under subpoena by the parties can also be returned.

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Last Modified: 12/12/2001